Supreme Court Accepts 12 New Cases, Including No Compete and Expunction Cases

July 7, 2014 – The Wisconsin Supreme Court, which accepted review in 12 new cases recently, may decide whether additional consideration beyond the benefit of continued employment is required to support a no compete provision in an employment contract.

During its 2014-2015 term, the court will also review whether a defendant must file a petition to expunge crimimal records, even if a sentencing court has already ordered the expunction of records upon successful completion of probation conditions.

Runzheimer International v. Friedlen (No Compete)

David Friedlen worked at Runzheimer International for about 20 years before the company asked him to sign a no compete agreement, which prohibited Friedlen from providing “restricted services” to the company’s competitors. The company said Friedlen could continue working for the company if he signed the agreement. He signed it.

About two years later, the company fired Friedlen. Soon after, Friedlen began working for a competitor, and Runzheimer filed suit to enforce the no compete agreement.

Friedlen argues that the agreement is unenforceable because it lacked sufficient consideration. Specifically, he says continued employment is not sufficient.

Runzheimer argues that continued at-will employment is sufficient consideration to support a restrictive covenant. The company says Wisconsin courts have never decided the issue as it concerns an agreement signed by an existing employee.

The Wisconsin Court of Appeals certified the case for supreme court review, concluding that the “law in Wisconsin regarding this issue is unclear.”

State v. Hemp (Record Expunction)

Kearney Hemp was under 25 years old when he entered a guilty plea for possession of THC with intent to distribute. The sentencing judge ordered jail time and an 18-month probation period. The judge also ordered expungement of his criminal record upon successful completion of probation conditions, allowed for those under age 25.

Hemp successfully completed the conditions of his probation, and the Department of Corrections issued a certificate of discharge to the circuit court in Milwaukee County.

But expunction of his record did not automatically occur. Hemp was informed that he needed to file an expunction form with the court. By the time that happened, Hemp had picked up new charges in a different county, and his prior conviction was still listed.

Hemp argues that expungement was automatic when he satisfied the conditions of his probation and the certificate of discharge was received by the court.

However, a three-judge appeals court panel concluded that Hemp was required to affirmatively petition the circuit court for expungment, even though the sentencing court had already ordered expunction of his record upon successful completion of probation.

And since Hemp had new charges by the time that petition was filed, the appeals court ruled that Hemp's expungement petition was properly denied by the lower circuit court.

The supreme court is expected to decide whether court-ordered expunction is automatic when a probation discharge certificate is issued, or whether the defendant must take affirmative steps to file for the expunction through a petition filed to the court.

Other Accepted Cases

State v. Moore (Juvenile Interrogations): Police interrogated 15-year old Raheem Moore, who was later convicted for second-degree reckless homicide. Moore had filed a motion to suppress statements that he made to police, but it was denied. A three-judge appeals court panel rejected Moore’s claim that his confession was involuntary.

Stoker v. Milwaukee County (Pension Benefits): A class of former Milwaukee County employees sued the county and the county’s Pension Board, arguing that the formula for determining pension amounts at retirement was unlawfully altered by county ordinance. A circuit court ruled that Stoker and other class members had vested rights that could not be altered, and a three-judge appeals court panel affirmed.

Sohn Manufacturing v. LIRC (Worker’s Compensation): An employee at Sohn Manufacturing injured her hand at work. Sohn argued that federal law preempts state law requiring employers to pay penalties when workplace safety violations cause injuries. A state appeals court clarified that federal law does not preempt an injured party’s ability to get additional compensation under state worker’s compensation law.

State v. Scull (Search and Seizure): The issue is whether the trial court erred in denying Gary Scull’s motion to suppress evidencefound by police after they brought a drug-sniffing dog to the front door of his residence without a warrant or probable cause.

State v. Alger / State v. Knipfer (Sexually Violent Commitments): These two cases examine similar issues related to whether a Wis. Stat. ch. 980 (relating to the commitments of sexually violent persons) petition for discharge that was filed after Wisconsin’s adoption of the Daubert reliability standard for expert testimony should be considered a “new action” or a continuation of an existing case. Arguably, if considered a new action, the new Daubert standard would apply. If a continuation, it would not.

State v. Harrison (Judicial Substitution): Facing burglary and other charges,Richard Harrison filed a motion for judicial substitution. The case was reassigned, but after a preliminary hearing, the original judge was back on the case. After being convicted, Harrison asked for a new trial, arguing that the judge who presided over the trial had no authority to act because he timely filed for substitution of the judge. The supreme court may decide whether Harrison is entitled to an automatic reversal, among other issues.

Bank of New York v. Carson (Foreclosure Redemption): This case examines whether Wis. Stat. ch. 846 (real estate foreclosure) requires a plaintiff in a foreclosure action to sell subject property “without delay” upon the expiration of the redemption period or merely permits a plaintiff to sell the subject property upon the expiration of the redemption period. A conflict in case law may be resolved.

State v. Alexander (Ineffective Assistance): This criminal case examines whether the Court of Appeals may choose to review a case under an ineffective assistance of counsel analysis, even though that claim was not raised below or in the parties’ appellate briefs.

State v. Delebreau (Sixth Amendment Right to Counsel): The case examines whether a Miranda waiver is sufficient to waive a defendant’s Sixth Amendment right to counselafter defendant is charged and is represented by counsel.